Rewarding Bad Behavior

With most of the nation's eyes on a tight presidential race heading into its final days, it is hardly surprising that the growing allegations of torture and abuse of detainees carried out by U.S. authorities have largely fallen off the political radar screen. Neither campaign has much interest in saying anything that could be seen as negative about our troops, the vast majority of whom have indeed performed admirably. Likewise, the last topic any member of Congress facing re-election wants to discuss is how to be more “sensitive” to the laws against torture in the “war on terrorism.”

Still, it is one thing for the political parties in these final weeks to remain silent on how to address the damage done by the now many hundreds of allegations of torture and abuse -- and dozens of deaths -- of those in U.S. custody from Iraq to Afghanistan to Guantanamo Bay, Cuba. It is quite another to actively embrace these practices as a matter of law. Yet, not even six months removed from the publication of photos of torture from Abu Ghraib, that is precisely where we seem to be.

On the accountability front, senior commanders and civilian leaders whom the military's own investigations have found responsible for gross failures to train and discipline their subordinates are not facing censure but promotion. Major General Geoffrey Miller -- formerly in charge of interrogations at Guantanamo Bay and credited in Major General George Fay's investigation with instituting the use of dogs at Abu Ghraib -- is now the senior commander in charge of detention operations in Iraq. Major General Barbara Fast -- the highest-ranking intelligence officer tied to the Abu Ghraib prison scandal -- is on deck to be put in charge of the U.S. Army's main interrogation training facility at Fort Huachuca, Arizona. And last week, Pentagon officials indicated that Defense Secretary Donald Rumsfeld was planning to reward Army Lieutenant General Ricardo Sanchez -- who oversaw detention facilities in Iraq and received scathing criticism in Defense Department investigations for his handling of interrogation policy and practice -- with a fourth star following the election.

As for policy developments, the Pentagon continues to hold detainees at Guantanamo Bay in prolonged solitary confinement, under conditions that, according to one detainee's appointed military defense counsel, violate basic prohibitions against cruel and inhuman treatment under U.S. and international law. At the same time, the administration has steadfastly refused to allow the International Red Cross, which operates in complete confidentiality, even to visit an unknown number of detainees still held in U.S. custody. Arguably worst of all, 232 members of the House earlier this month voted for a bill, introduced by Speaker Dennis Hastert, that would require the secretary of homeland security to exclude from the protection of the United Nations Convention Against Torture -- a treaty the United States signed and ratified a decade ago -- any foreign national the government deems a terrorist suspect.

A particularly telling case in point, the dense and hastily drafted House version of the bill to implement the September 11 commission recommendations includes a provision widely seen as an attempt to legalize “extraordinary rendition” -- a technical euphemism to describe the practice of sending suspects to the Syrians or Jordanians so we can avoid doing the dirty work of torture ourselves. The Torture Convention naturally bars parties from sending anyone to a country where “there are substantial grounds for believing that he would be in danger of being subjected to torture.” But the House bill would lift this prohibition, enabling the United States to deport (or “render”) foreign nationals to countries long condemned by the U.S. State Department for widespread practices of torture and other gross abuse. A potential deportee could avoid this fate only by proving through “clear and convincing evidence that he or she would be tortured” upon return. Merely showing that torture is more likely than not would no longer be enough.

Given the parade of horrors around the world these past few years, Americans may understandably be too shell-shocked to debate such issues carefully and in public. We have witnessed the stunning deaths of some 3,000 friends and loved ones in New York and Washington. We have lost more than a thousand U.S. troops fighting in Afghanistan and Iraq, with thousands more badly wounded. We have seen deeply disturbing photos of our own troops brutalizing the Iraqis that we were supposed to set free. And we are now treated with alarming frequency to gruesome reports of beheadings in Iraq. The violence is enough to overwhelm rational consideration of evidence that torture does not produce reliable intelligence, or that revelations of our detention practices have spurred terrorist-recruiting efforts more effectively than the terrorists ever could. But psychic exhaustion will be small comfort if the rendition provision -- which has now been publicly condemned by everyone from Human Rights First to the American Bar Association to the White House itself -- survives the congressional conference committee this week.

Whichever candidate wins in November has an enormous task ahead of him to repair the damage done this past year to America's efforts in counterterrorism, and to restore America's moral authority to advance the cause of democracy and human rights around the world. Congress might be forgiven for pausing to catch its breath before it begins. But there is no excuse for doing further violence to the cause of security and justice while we wait.

Deborah Pearlstein is director of the U.S. Law and Security Program at Human Rights First (formerly the Lawyers Committee for Human Rights) and a visiting lecturer on human rights and national security at Stanford Law School.

About the Author

Deborah Pearlstein is a visiting research scholar at the Woodrow Wilson School of Public and International Affairs at Princeton University. From 2003-2007, she was director of the U.S. Law and Security Program at Human Rights First.